dissenting:
The chancellor was right in denying intervention to Louis Engelstein. Plaintiffs owned, prior to the redemption under the plan of compromise, 241 of the 17,284% outstanding shares. They faithfully prosecuted the case for 10 years at every judicial level and secured for themselves and other plaintiff shareholders’ adoption of a plan of compromise which they proposed. The evidence supports the decision of the chancellor that the representation of appellant was adequate. Appellant’s interests were adverse to his ber ing allowed to become an intervenor on the side of the plaintiffs. Appellant is in no position to. argue that the efforts being made for minority shareholders are inadequate. The results for the stockholders are more than adequate. The court is not ordering the distribution of any property in the custody of the court. Appellant can collect $97 a share for the 45 shares owned by him by applying for it at the corporation. Louis Engelstein cannot attain standing justifying intervention because of his claim to a much larger stock ownership in his partnership suit with Harry M. Engelstein. The latter was part of the group of defendants in the wrongdoing condemned in the Supreme Court opinion. Louis Engelstein’s position is adverse to that of the plaintiffs. Therefore appellant has no honorable ground to intervene in these proceedings. He stayed out for many years when he could have joined plaintiffs if he believed they were in justice entitled to win. It is now too late for him to seek to impose his will upon everyone.
The chancellor heard evidence and made findings of fact on what would he fair, reasonable and proper costs and attorney’s fees. The amounts were itemized in a report to all stockholders, were ratified by them and allowances incorporated in an integral part of the plan finally approved by the chancellor. It should not be necessary to consider the propriety of the allowance of fees, costs and expenses because the. decision of the chancellor against intervention should be sustained. The allowance to plaintiffs’ attorney of $85,000 for a recovery equivalent to $446,500 in a case wholly contingent, which went through the master, the chancellor and two courts of appeal, is supported by the schedule of fees of responsible bar associations. The allowance of $20,000 for “costs of the litigation not otherwise heretofore reimbursed” is sustained by the record.
The court, after remand, took no steps inconsistent with the Supreme Court mandate or beyond its jurisdiction. The rule is well settled that the court is bound by the prior opinion but may take some new steps if they are not in impeachment or contradiction of the higher court’s opinion. Green v. City of Springfield, 130 Ill 515, 519, 22 NE 602; Gee v. Hoeppner, 267 Ill App 459, 465; West v. Douglas, 145 Ill 164, 166, 34 NE 141; Dinsmoor v. Rowse, 211 Ill 317, 319, 71 NE 1003; 5B CJS, Appeal and Error, pp 574, 603, to the effect that when a case is remanded the court may take steps not inconsistent with the order of remand. The chancellor had the right, when the defendants defaulted on the accounting, to consider the further, as well as the continuing, illegal and oppressive acts of the defendants, and to consider whether it would not give the minority stockholders proper relief by the compromise method which was more advantageous to them, than dragging on with the litigation. The position of appellant that nothing could be done but hold an accounting, would preclude any settlement without a lengthy accounting. Obviously much litigation is settled after remand. From experience we know that after an appeal the parties and their counsel are sobered into settlement without the bitterness that is at least partly laid to rest by the feeling they have been fully heard. Appellant has induced the majority to declare a rule that would preclude such settlement, if they require court approval, on the ground that there is not a literal carrying out of the mandate.. Section 52.1 of the Civil Practice Act allows compromise of class actions on such terms and notice to the class as the court directs. There is no complaint that adequate notice was not given.
The reviewing court which issues the mandate, in this case the Supreme Court, has the power to enforce the mandate and to determine whether there has been compliance with it. It is doubtful that appellant would have any standing in the Supreme Court to urge a noncompliance with the mandate.